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Lincolnshire County Council (20 010 016)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 06 Apr 2022

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s failure to manage her daughter’s EHCP and provide the support she was entitled to. We have found the Council was at fault because it took too long to issue an amended EHCP and as a result did not increase the personal budget when it should have done. These faults caused distress and uncertainty and loss of additional support. To remedy this injustice, the Council has agreed to apologise and make a payment to Mrs X. We have not found fault in other matters complained about. We were unable to investigate Mrs X’s complaint about her daughter’s educational placement because the SEND Tribunal had jurisdiction over this.

The complaint

  1. Mrs X complains about the Council’s failure to manage her daughter’s ECHP properly since May 2019 and provide her with a suitable education and related issues. In particular, Mrs X complains about the following matters:
      1. Failure to name a suitable school or support Mrs X’s proposal to educate her daughter at home.
      2. Failure to provide suitable alternative education while her daughter was out of school.
      3. Delay in producing an amended EHCP following an annual review in May 2019. The final EHCP was not issued until July 2020.
      4. Non-payment of a personal budget and refusal to provide financial support to fund SEN provision while her daughter was out of school.
      5. Failure to provide occupational therapy (OT) in accordance with the EHCP.
      6. Failure to reimburse costs incurred by Mrs X when she commissioned private experts reports at considerable personal expense to inform the Council about her daughter’s SEN.
      7. Failure to provide SEN support during the COVID-19 lockdown.
  2. Mrs X says these failures have had a significantly detrimental impact on both her daughter’s academic progress and general well-being. Mrs X also says her own health and mental well-being have suffered as a result of her dealings with the Council in trying to make the Council provide her daughter with the specialist support she needs.

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What I have investigated

  1. The Ombudsman cannot investigate all of Mrs X’s complaint because parts of it are about the content of her daughter’s EHCP. The content of an EHCP is a matter which can be appealed to the Tribunal and the Ombudsman normally expects appeal rights to be used where they exist. In the context of this complaint, Mrs X first had the opportunity to appeal to the Tribunal in September 2020.
  2. Mrs X used her right to appeal in July 2021 but then withdrew it. When appeal rights are used, this places the matter outside the Ombudsman’s jurisdiction. This is the case even though the appeal may not subsequently be heard. The Ombudsman cannot intervene.
  3. Case law has confirmed that the Ombudsman has no jurisdiction to consider complaints about a council's failure to offer educational provision from the date the appeal right arose. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
  4. For these reasons, I am unable to investigate a) and part of b).

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I spoke with Mrs X and reviewed the information she provided.
  2. I made enquiries with the Council, considered its responses and reviewed the relevant law and guidance.
  3. Mrs X and the Council had an opportunity to comment on draft versions of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Councils and special educational needs

Education, Health and Care Plans and Personal Budgets

  1. Councils’ responsibilities towards children with special educational needs (SEN) are set out in the SEN and Disability Code of Practice (the Code).
  2. An Education, Health and Care plan (EHCP) is a legal document which describes a child or young person’s special educational needs, the support they need, and the outcomes they would like to achieve.
  3. The council is responsible for making sure that arrangements specified in a child’s EHCP are put in place. The council will usually do this by funding to a school or college to provide the necessary support. A council may also make a payment to a parent or young person so that they can organise the provision themselves. This is called a personal budget.
  4. We can look at complaints about these matters, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

  1. An annual review of the EHCP must take place once per year. Within two weeks of the annual review meeting the school must prepare and send a report to the council setting out recommendations on any amendments required to the EHCP. Within four weeks of the annual review meeting the council must notify the child’s parents whether or not it has decided to amend the EHCP (Notice of Amendment). If the EHCP requires amendment this should be started without delay.
  2. The amended EHCP must be issued within eight weeks from the date of the amendment notice. Parents must be notified of the right to appeal to the SEND Tribunal (the Tribunal).

The Special Educational Needs and Disability Tribunal

  1. Parents who are unhappy with the content of the child’s EHCP, or about a placement named in it at Section I, may appeal to the Tribunal. The law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal. This means that the Ombudsman cannot investigate a complaint when the issues it raises can be dealt with through an appeal to the Tribunal.

The Coronavirus Act 2020

  1. In March 2020 some aspects of the law on education, health and care needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
  2. The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHCP was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.
  3. The Government issued guidance about the changes, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This noted:
  • It may be difficult to provide all elements of support in an EHCP, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
  • Council’s should undertake a risk assessment to establish the individual needs of each child with an EHCP, incorporating the views of the child and their parents.
  • The council should keep a record of the provision it decides it must secure or arrange and share this with the parents or young person, explaining why any provision differs from what is set out in the EHCP.

What happened

  1. I have set out below a summary of the key events. But it is not meant to show everything that happened.
  2. Mrs X’s teenage daughter, whom I shall refer to as Child Y, has SEN and has an EHCP. Since September 2018, Child Y attended School A. Mrs X received a personal budget to fund an additional two hours of home tuition.
  3. In May 2019, an annual review was held at School A. Despite the obligation on School A to send the annual review paperwork to the Council within two weeks and the Council sending several reminder emails, it did not do so until October 2019, a delay of five months.
  4. Shortly after the annual review, Mrs X asked for the personal budget to be increased from two to three hours of home tuition. The Council says it was unable to process this request until the annual review paperwork had been received from School A.
  5. In September 2019, Mrs X told the Council her existing personal budget had not been paid. The Council’s case worker advised Mrs X a mistake had been made and the personal budget was promptly reinstated.
  6. In October 2019, the Council sent Mrs X a Notice of Amendment. The final EHCP was not issued within eight weeks and this caused further concern to Mrs X.
  7. In January 2020, Mrs X requested a social care assessment to support her previously denied requests for a direct payment for Child Y. Although the request for an assessment was agreed, concerns were raised about Child Y. She was designated to be a Child in Need.
  8. The personal budget allowed Child Y to receive additional four hours home tuition. However, this was suspended (and later terminated) following an audit about how this money was being spent. Mrs X later returned all money she had received for the 2019/20 academic year.
  9. From March 2020, Child Y was unable to attend school due to the Covid-19 lockdown and she was shielding. The Council says School A was providing a remote education for Child Y and had satisfied itself that the necessary risk assessment had been carried out by School A. Mrs X says this was inadequate and failed to provide any specialist support for Child Y’s SEN. Mrs X asked to Council to transfer funds allocated to School A to her to enable her to commission alternative private SEN support while Child Y was unable to attend school. The Council declined this request because it was satisfied School A was providing a suitable education.
  10. The ensuing Child in Need assessment prompted the Council to start a child protection investigation in respect of Child Y, who was made the subject of a Child Protection Plan in May 2020.
  11. The Council decided to delay any decisions about her EHCP until it was better informed about Child Y’s needs. This was being progressed through the child protection process. This involved a number of health, care and educational professionals.
  12. Mrs X strongly contested the Council’s justification for the child protection investigation and was concerned about the impact the delay in the EHCP process was having on Child Y. However, the Council says Mrs X agreed to the delay.
  13. The Council issued Child Y’s final EHCP in July 2020. This named School A in section I. It also gave Mrs X the right to appeal to the Tribunal.
  14. Shortly afterwards, Mrs X removed Child Y from School A because she was concerned about injuries she had sustained there and its ability to administer her medication. The Council has said it is satisfied these matters were fully investigated and allegations were unfounded. The Council agreed to Mrs X’s request to withdraw Child Y because it was clear the relationship with School A had broken down as a result of its role in the child protection investigation.
  15. The Council says it remained satisfied, but for this relationship breakdown, School A was able to meet her educational needs as evidenced by positive school reports confirming Child Y’s progress during her time there.
  16. An annual review took place in July 2020, within the child protection proceedings. This led to School A being removed from Section I of Child Y’s EHCP.
  17. Mrs X commissioned her own expert reports from an educational psychologist and occupational therapist. She says this was necessary because the Council had not done so. Mrs X later asked the Council to reimburse her costs. The Council refused. Mrs X said she wanted College P named at Section I of the EHCP.
  18. The Council consulted with College P in August 2020. Initially College P advised the Council it was unable to meet Child Y’s SEN but, after a meeting with Child Y and Mrs X, it agreed she could go for a taster session. This proved unsuccessful and Mrs X conformed she no longer wanted the Council to pursue College P.
  19. Mrs X was concerned that Child Y was out of school. She advised the Council of her intention to employ a home tutor and invoice the Council for the cost of doing so. She also threatened the Council with legal action.
  20. Another setting, School B, was identified as a possible option.
  21. On 7 September 2020, the Council contacted Mrs X to discuss home tuition, but Mrs X said she had her own arrangements in place. A further discussion took place on 14 September 2020 and the Council made arrangements for home tuition to start the following week. Initially this would be for two hours per day and increase after a settling in period.
  22. Mrs X then advised the Council she intended to electively home educate (EHE) Child Y. She planned for Child Y to attend College P on a part time basis, supplemented by home tuition. When the Council refused to support this financially, Mrs X told the Council she wanted section I of the EHCP to specify that Child Y was educated other than at school (commonly referred to as EOTAS). The Council did not agree to this.
  23. On 23 September 2020, the Council issued a final EHCP. This did not name a particular school in Section I, just that she should attend “a mainstream setting”. It included a need for OT support. Mrs X was advised of her right to appeal to the Tribunal.
  24. Further discussions took place with various options being considered including School B, College P and a bespoke package of care, elective home education.
  25. Mrs X cancelled the home tutor arranged by the Council because she was employing her own home tutors. She told the Council Child Y was attending College P on a part time basis.
  26. On 29 September 2020, the Council issued a Notice of Amendment, specifying EHE at Section I. Mrs X said she did not agree to EHE. The Council attempted to reinstate the home tutor support, but Mrs X refused.
  27. A week later Mrs X told the Council that the placement at College P had broken down and she wanted to pursue School B. She also wanted the Council to reinstate the home tutor.
  28. On 13 October 2020, the Council issued a final ECHP naming School B at Section I. Mrs X was again informed of her right to appeal to the Tribunal.
  29. The Council started working on a transitional plan with School B. As School B had started online learning with Child Y, Mrs X cancelled the home tutor.
  30. Four days later, Mrs X advised the Council the online learning was inadequate. She asked the Council to reinstate the personal budget to allow her to arrange a home tutor instead.
  31. In early November 2020, Child Y started part time attendance at School B. The school planned for Child Y to build up to full time attendance before Christmas.
  32. Unfortunately, Child Y did not like School B. Mrs X explained she could not cope with a school environment anymore because of her previous experience at School A. She needed a slower transition back into school. Mrs X explained the most suitable way forward was for Child Y to be home educated with additional training in dance.
  33. Child Y returned to remote learning due to Covid-19. Mrs X told the Council she was thriving at home. She asked the Council to amend the EHCP to support EOTAS with an additional 10 hours of funded home tuition. Mrs X felt this was a reasonable, cost-effective solution for the Council because she would pay for other support.
  34. The Council refused because it was confident School B could meet Child Y’s needs. It explained to Mrs X that if she wanted to electively home educate Child Y, the EHCP could not provide additional resources requested by Mrs X. In response Mrs X suggested a “flexi-schooling” arrangement, whereby Child Y would attend School B for three days per week and would learn remotely for the other two days. The Council rejected this. It remained of the view Child Y should be working towards full time attendance at School B. The Council said it intended to name School B in section I of the EHCP.
  35. On 22 December 2020, Mrs X told the Council she was deregistering Child Y from School B. She said she would be electively home educating Child Y and wanted the EHCP to reflect this. She also expressed dissatisfaction that Child Y was not receiving the occupational therapy (OT) support she was entitled to under her EHCP.
  36. In response the Council said due to capacity issues the OT would not be able to start until January 2021 but confirmed this would continue even if Child Y was electively home educated. Mrs X asked the Council about Child Y’s eligibility for SEN funding support that she would have the benefit of if she was at school.
  37. In February 2021, Mrs X again asked the Council for funding support. The Council explained this was not available for home schooled children, even those with SEN. Mrs X asked for an assessment under section 19 of the Education Act. She also told the Council she would be appealing the EHCP.
  38. An annual review took place in May 2021. Mrs X repeated her request for EOTAS to be named at section I.
  39. In July 2021, Mrs X lodged an appeal at the Tribunal. She withdrew this in October 2021. She has explained by the time the case went before the Tribunal in late November 2021, any resulting provision would be in place too late for it to benefit Child Y who is due to sit her GCSEs in May 2022. In the meantime, Mrs X says she pays £200 for a private tutor to facilitate this.

The complaint

  1. Mrs X brought her complaint to the Ombudsman in January 2021. I have summarised her main areas of complaint at paragraph 1 above.
  2. Mrs X says the Council has failed her daughter for several years and her extended time out or school has had a devastating effect on her educational and social development and mental health. Mrs X says she is herself exhausted and demoralised by the Council’s lack of support and failure to comply with its legal obligations under the EHCP. She says she did not choose to EHE, rather than was forced to do so by the Council’s failure to provide an acceptable alternative.

The Council’s response

  1. The Council has provided several detailed responses to Mrs X’s complaints and to the Ombudsman that I have summarised these below:
      1. The delay in producing the Notice of Amendment following the March 2019 was the fault of School A. Child Y was not disadvantaged by this delay in any event because the only issue raised by Mrs X during this time was about the personal budget, rather than about any lack of SEN support. The annual review only prompted minor alterations to Child Y’s needs and specialist provision that would continue to be provided by School A.
      2. Mrs X was in agreement to delay in producing the final EHCP because of the complex child protection proceedings.
      3. Mrs X rejected School B and chose to EHE instead. The EHCP was amended in December 2020 to reflect this. The Council could not agree to Mrs X’s proposal to EOTAS or "flexi-schooling”. It was satisfied School B had been made available and was able to meet Child Y’s SEN and EHCP. It may also have been supportive of Child Y attending College P as part of her EHE arrangements, but this was rejected by Mrs X as a personal budget would not be available.
      4. As Mrs X had chosen to EHE it had no duty to provide any additional SEN support.
      5. The Council attempted to put in place a home tutor in September 2020, but this was rejected by Mrs X.

Analysis

  1. This was clearly a complex and difficult situation. Mrs X had genuine concerns about the impact of her continued non-attendance at school. I have addressed the matters complained about below.

Lack of educational provision

  1. I cannot by law investigate or remedy a matter in circumstances the complainant could have exercised her right to appeal to a tribunal, unless it was unreasonable for them do so. Although the Council issued a final EHCP in July 2020, naming School A at section I, almost immediately the placement broke down and I am satisfied the Council and Mrs X were both working towards finding an alternative over the summer holiday period with a view to Child Y starting in the autumn term.
  2. Because of this, I do not feel it was either necessary or appropriate for Mrs X to appeal to the Tribunal between July 2020 and September 2020
  3. Importantly, the Council issued a final EHCP in September 2020 without naming an educational placement. In these circumstances, Mrs X had a right of appeal against this. In my view, the requirement to provide suitable alternative education is inextricably linked to the naming of a school placement for which Mrs X had a right of appeal. This is because, but for the Council not naming a suitable placement, alternative provision would not have necessary.
  4. Case law has firmly settled the Ombudsman does not have the legal jurisdiction to question the suitability of alternative education provision in these circumstances.
  5. But I was able investigate Mrs X’s complaint about lack of provision from March 2020 up to September 2020. Mrs X has confirmed Child Y was unable to attend school in person for this period of time because due to Covid-19 restrictions and Child Y was on the shielding list.
  6. I would expect School A to have provided a suitable education while she was on roll to the end of the summer term in July 2020. School A advised the Council as part of the child protection proceedings in May 2020 that Child Y was making good progress. Mrs X says some online work was set but this was inadequate and that she needed support to complete. I am unable to investigate the actions of the school here but I would expect the Council to make enquiries if it became aware of a problem.
  7. I have checked the case notes from this time period. On 23 March 2020, Mrs X contacted the Council to say work was being sent home but asked if funding could be made available to pay for additional support. There are no other records about lack of educational support during this term. The Council said this issue was only raised much later when Mrs X started complaining formally and the relationship with School A had broken down during the child protection proceedings.
  8. Because the Council was only made aware of this issue retrospectively, I have not found the Council to have acted with fault.
  9. A suitable school had not been identified at the start of the autumn term. The Council was aware Child Y was still out of education and should have made alternative arrangements. While I can see work was taking place to find a suitable school and officers were supporting Mrs X’s then wish for Child Y to go to college P, this does not remove the Council’s obligations to ensure an alternative was available while this was happening.
  10. The records show a Council SEN tutor contacted Mrs X on 7 September 2020 with an offer of home tuition but was told she already had her own arrangements in place.
  11. Because of this, I am satisfied the Council had made suitable education available to Child Y, but was refused by Mrs X. For this reason, I do not find the Council to have acted with fault.

Delay in the ECHP process between May 2019 and October 2019

  1. The annual review took place in May 2019. The Code states that a council is required to issue a Notice of Amendment within four weeks. This did not happen until October 2020. From this date, the Code states the final amended EHCP should be issued within eight weeks. This did not happen until June 2020.
  2. The Council says it was waiting on School A to forward the annual review paperwork, but it failed to do so. I have seen evidence the Council chased School A on several occasions. While I acknowledge the Council was in a difficult position here, I do not consider the Council did enough to progress the matter. The Council should ensure it has procedures in place to ensure SEN paperwork is submitted promptly by schools in its area. And ultimately the Code places the responsibility on the Council to issue the Notice of Amendment. For this reason, I have found the Council to be at fault.
  3. It is not possible for me to determine what specific injustice arose from this lengthy delay in terms of Child Y’s SEN provision. However, it is clear from what Mrs X has told me that the uncertainty led to significant distress. There is also uncertainty about whether Child Y’s personal budget would have increased sooner than it was. I have addressed this later in this report.
  4. I have recommended a remedy to acknowledge this distress and the uncertainty caused by this significant delay.

Delay in the ECHP process between October 2019 and June 2020

  1. There was further significant delay in issuing the final EHCP. I am satisfied this was in part due to the intervening child protection investigation. I have seen evidence that Mrs X accepted a delay in issuing the EHCP because it was in Child Y’s best interest to have the uncertainty about the extent of her SEN clarified. Because of this, I do not find the Council to be at fault here from May 2020, particularly as I agree with the Council’s submission that Child Y was not disadvantaged by this delay. The description of Child Y’s needs and provision to be delivered remained mainly unchanged and this is confirmed by the relevant EHCP’s I have read.
  2. However, the Council has been unable to account properly for the delay before May 2020. The final EHCP should have been issued within eight weeks from the date of the Notice of Amendment. While I appreciate the Council was in a difficult position trying to resolve the uncertainty around Child Y’s SEN needs, I have not seen sufficient evidence the Council was sufficiently pro-active in trying to do so. Nor I am satisfied that it communicated the reason for the delay to Mrs X. This delay is fault, and it is clear from what Mrs X has told both the Council and the Ombudsman that this caused significant frustration and distress particularly as she was concerned that Child Y was not receiving the level of support she required.

Personal budget and request for additional SEN funding

  1. Mrs X complains there was delay by the Council in providing a personal budget for Child Y’s benefit from September 2019 and April 2020.
  2. The Council has accepted there was a system error that was soon corrected when raised by Mrs X. Due to the nature of the error and the Council’s speedy resolution, I do not find fault here.
  3. The later issue around the personal budget arose when the Council asked Mrs X to provide invoices for the expenditure as part of its standard auditing processes. The Council, when making payments out of public funds, is required to have measures in place to ensure they are properly spent. There was no fault by the Council for asking to see this evidence and when it was not provided by Mrs X for suspending future payments to her.
  4. It appears Mrs X felt she was being accused of being untrustworthy. There is no evidence to support this view. On the contrary, the Council explained to her the reason why invoices had to be seen and these rules applied to all recipients.
  5. During these discussions, Mrs X said she would return the money.
  6. Because of this Mrs X did not have the benefit of the personal budget. While unfortunate, this was not because of Council fault. The Council acted correctly by asking for evidence and it was Mrs X’s choice to return the money rather than provide this.
  7. However, as stated at paragraph 83 above, there is uncertainty about whether Child Y would have had the benefit of an additional payment if the annual review process had progressed as it should have done in 2019. On balance, because the Council decided in January 2020 to increase the budget from two to four hours, I consider it is likely the payment would have been made sooner and this delay is fault. An appropriate remedy is for the Council to make a payment to Mrs X equivalent to the two hours of additional support she would have received from the time it would have been available in September 2019 to the end of the autumn term 2019. This takes account of the fact Mrs X did not comply with the Council’s personal budget audit requirements and returned the balance of Child Y’s personal budget in 2020.
  8. I am unable to investigate Mrs X’s complaint about additional higher-level funding because this is inextricably linked to matters that were appealable to the Tribunal.

Failure to provide OT support as set out in the EHCP dated September 2020

  1. The Council accepts Child Y’s September 2020 EHCP included OT support but due to capacity issues beyond the Council’s control, this was not put in place until January 2021.
  2. It is the Council’s responsibility to ensure this type of therapy is provided when specified in the EHCP. I have noted the Council first contacted OT providers in October 2021, once it became aware that School B was unable to provide the OT support at the level required by Child Y. I also acknowledge capacity issues, exacerbated by the pandemic, led to a delay between the date it was known that OT support was required and service delivery of approximately three months. While I appreciate the frustration caused to Mrs X by this delay, I am satisfied the Council used its best endeavours to arrange this as soon as it could, in the difficult circumstances at the time. For this reason, I do not find the Council to be at fault.

Failure to reimburse Mrs X for the cost of expert reports.

  1. Mrs X believed the Council did not properly understand her daughter’s needs and says she had no choice but to pay for private OT and educational psychologist reports. The Council explained to Mrs X that this was not necessary and did not make any commitment to funds this.
  2. While Mrs X is of the strongly held belief the Council is responsible for meeting the costs, I do not agree. As part of the child protection proceedings, the Council sought advice from a number of medical professionals including the specialisms of particular concern to Mrs X. This information then informed the July 2020 EHCP.
  3. The law requires councils to seek advice from specialist services where necessary, and this is what the Council did. There was no fault by the Council.

Failure to provide SEN support during the COVID-19 lockdown

  1. The legislation stated that when schools and colleges closed in March 2020 as the country went into lockdown, councils had to carry out a risk assessment with children who had an EHCP to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
  2. The case records show Mrs X told the Council that Child Y needed the additional support that would normally have been provided by the school.
  3. The records also show School A had carried out a risk assessment and this information was shared with the Council. This demonstrated that both School A and the Council were satisfied with arrangements that were in place at the time. This record also shows that Mrs X had told the school that Child Y was “happy enough” and had plenty of work.
  4. I appreciate Mrs X now holds a different view about the support in place for Child Y, but I am satisfied that at that particular time, the Council had complied with the requirements at the time to satisfy itself (through the risk assessment process) that School A was meeting Child Y’s SEN needs in the context of the pandemic. For this reason, I do not find the Council acted with fault.

Conclusion

  1. I have identified several areas of fault that caused an injustice in the Council’s handing of this matter:
      1. Delay in issuing the Notice of Amendment in October 2019.
      2. Delay in issuing the final EHCP in July 2020.
      3. Delay in considering Mrs X’s request for an increased personal budget.

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Recommended action

  1. Within one month of the date of the final decision statement, I recommend the Council should take the following action:
  • Apologise in writing to Mrs X and Child Y for the faults identified in this report and the distress and frustration this has caused them.
  • Pay Mrs X £500 to remedy the distress, frustration and unnecessary time and trouble she experienced as a result of significant delay in the EHCP process.
  • Make a payment to Mrs X to be used for Child Y’s educational benefit, equivalent to the two hours of additional support for the autumn term 2019. This is £261.19. Mrs X should comply with the Council’s personal budget audit requirements.
  • Review its procedures to ensure measures are in place to prevent similar delays in the EHCP process happening in future. The Council should provide the Ombudsman with a summary of the action it has taken.

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Final decision

  1. I have found several areas of fault in respect of the matters complained about. These caused an injustice to Mrs X and Child Y and the Council has agreed a suitable remedy. On this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate matters that were appealable to the Tribunal for the reasons explained in this decision.

Investigator draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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